Geiser Mfg. Co. v. Cassell

AMIDON, District Judge (after stating the facts as above). Most of the contentions of the plaintiff rest upon a construction of the contract, which omits to give proper effect to the condition in writing which was added upon the demand of the defendant. By a well-settled rule, where there is any conflict between printed portions of a contract and those in writing, the written portions control. In our judgment the written stipulation in this case completely transformed the nature of the contract. The printed order was highly artificial — was prepared with studious care to protect every right of the plaintiff, and to impose upon the defendant an absolute liability for the entire purchase 'price of the machine, for a violation of any one of its many technical formalities. Such was its manifest design, even though the machine failed wholly to perform the work for which it was purchased. For this one-sided and technical scheme of the order, the written stipulation substituted a fair and practical arrangement. If, upon a just test, the outfit was found not to do good work, no liability 'was to arise for its purchase price. On the other hand, if it satisfied the warranty, the defendant became at once obligated to settle for it in accordance with the terms of the order. The evidence leaves no doubt that the defendant throughout the transaction acted with entire sincerity and justice. He gave the machine a fair and practical test under the supervision and with the aid of experts supplied by the plaintiff. His objections were not captious or technical. He did not refuse arbitrarily to be satisfied with a machine which did fair work. On the contrary, the outfit was found to be wholly inefficient to do the work for which it was sold. Upon these facts, by the terms of the written stipulation, there was to be no liability. The scheme of the printed order contemplated a test for six days. The plan of the written order fixed no such limitation, but provided that the threshing outfit should be tried upon “all kinds of grain that a separator is made for.” We think this provision is inconsistent with the strict limitation of the printed order, and must control in the determination of the rights of the parties. The three points made by the plaintiff which have most merit are the following: •1. The printed order contained the following language: “Upon starting, if the purchaser is unable to make it operate well, notice wherein it fails to conform to the warranty is to be given by the purchaser to the Geiser Manufacturing Company, at Waynesborough, Pennsylvania, by prepaid telegram and registered letter. * * * ’ Failure to notify the Geiser Manufacturing Company, as provided, shall be a waiver of the warranty, and a full release of the Geiser Manufacturing Company, without in any way affecting the liability of the party ordering.” It is conceded that defendant did not notify the plaintiff “by prepaid telegram or registered letter.” The notice was sent in the ordinary course of mail. For this departure from the exact terms ot the printed order it is now contended that defendant became absolutely liable for the purchase price of the property. This in our judgment would defeat the very object which the defendant had in mind when he insisted upon the written stipulation. He, no doubt, [351] was familiar with the painful experience of farmers arising out of the technical provisions of printed orders for farm machinery. He insisted upon naming the one sole condition upon which he was to he liable for the purchase price of the threshing outfit. That condition was that the machinery should, as the result of a fair and practical test, fulfill the guaranty upon which it was sold. For the court to impose a liability for a violation of any of the numerous minor provisions of the printed order would be to defeat the very object which underlies this written stipulation. The defendant’s duty to give notice of the failure of the machinery to do good work arises, not out of the' technical provisions of the printed order, but out of the nature of the transaction into which the parties entered. He accepted the "machinery on trial, and was bound to give the plaintiff reasonable notice of its failure, and offer to return it. We think he has fully discharged that duty. 2. The printed order required the defendant to return the machinery “to the place where received, free of charge,” if upon trial it was found to be defective. It is conceded that the defendant did not do this. He explained his reason for not doing it in his written notice. Forada, the place where the machine was received, was a small station at which the plaintiff had no agent, nor were there any other persons engaged in the machinery business at that place, so that defendant could have made them bailees of the machine. If he had taken it to the town and left it, he would have been compelled to commit trespass upon private property. In our judgment this provision of the order was intended only for places at which the company had an agency, or, in the absence of such agency, it required the defendant to return the machine to the station for loading, when notified by the company to do so. Even the printed order does not specify any consequences to accrue from "failure of the defendant to comply with this provision. Such failure therefore would simply render him liable for the reasonable value of the service. If the plaintiff had notified him to return the machine to the station for shipment, he would have been liable to damages for failure to perform that part of his contract. That, however, would have been the full extent of his liability. 3. The printed order also contained a provision that: “Failure of any separate machine or attachment, or part thereof, shall not affect the llahilily of the purchaser for any other separate machine that is not defective.” That, however, is a part of the scheme of the printed order. The written stipulation deals with “the rig” as an entirety. If it failed to do good threshing work, the defendant was to incur no liability. The different parts of a threshing outfit are made to work together. The defendant had good reason for refusing to be compelled to take a fragment from the plaintiff, and then he driven to search for other parts from other manufacturers. In our judgment the written stipulation takes this case outside of the rides declared in the. cases cited by plaintiff, the more important of which are the following: Larson v. Minneapolis Threshing Mach. Co., 92 Minn. 62, 99 N. W. 623; Northern Electrical Mfg. Co. v. [352] Benjamin Coal Co., 116 Wis. 130, 92 N. W. 553; Trapp v. New Birdsell Co., 109 Wis. 543, 85 N. W. 478; Avery Planer Co. v. Peck, 80 Minn. 519, 83 N. W. 455, 1083, Id., 86 Minn. 40, 89 N. W. 1123; J. I. Case Threshing Mach. Co. v. Ebbighausen, 11 N. D. 466, 92 N. W. 826; Nichols & Shepard Co. v. Caldwell (Ky.) 80 S. W. 1099; Davis v. Gosser, 41 Kan. 414, 21 Pac. 240; Nichols & Shepard Co. v. Rhoadman, 112 Mo. App. 299, 87 S. W. 62; Heagney v. J. I. Case Threshing Mach. Co., 4 Neb. (Unoff.) 745, 96 N. W. 175; Nichols & Shepard v. Miller, 76 Neb. 809, 107 N. W. 1010; Nichols & Shepard v. Wiedemann, 72 Minn. 350, 75 N. W. 208, 76 N. W. 41; Nichols & Shepard Co. v. Chase, 103 Wis. 570, 79 N. W. 772. All of these cases turned upon the unqualified provisions of printed orders, similar to the one shown by the evidence here. The case was fairly submitted to the jury, and a just judgment was rendered. It is therefore: Affirmed.